Tribal
Governments Push Ahead
In Anishinaabe Akiing some new mining
proposals, and pipelines threaten the water and land of this region.
This past month, tribal governments stepped up to issue some big
challenges to those plans.
In late February, the White Earth
Tribal Council issued a resolution stating, “…it is opposed to
the application field by the North Dakota Pipeline company with the
Minnesota PUC with respect to a routing permit for the Sandpiper
Petroleum pipeline between Tioga ND and Superior Wisconsin.” The
White Earth tribe is concerned not only because the pipeline would be
in Nora Township (one of the most northeastern townships within the
l867 treaty reservation) just upstream from Rice Lake, the mother
lode of ricing on White Earth. The tribe is also concerned because
this pipeline, like the proposed expansion of the Alberta Clipper
line, impacts the l855 treaty area lands, which White Earth tribal
citizens need to feed our families and earn a modest living.
In early February, the Minnesota
Chippewa Tribe admonished the Minnesota Pollution Control Agency, for
“ecological ignorance,” wherein the PCA seems to be trying to
re-designate some of the waters where wild rice is found, so that
those waters can have diminished water quality. In short, Norman
Deschampe said in a letter to John Linc Stine, Minnesota PCA
commissioner, “ … waters used for the production of wild rice …
must remain on the wild rice waters lists for regulatory purposes.
They cannot be pulled off and dropped instead onto the proposed watch
list, in effect delisting them as class 4 status of the state with
the stroke of a pen.”
So it seems like the state of Minnesota
might have been trying to pull a fast one on the tribes, and it
doesn’t look like it worked. In another building in St. Paul, the
Minnesota PUC is considering issuing some permits for two big
pipelines the Sandpiper and the Clipper, and the state and federal
government are considering Minnesota’s first copper mining
proposal, one which will require water treatment for 250 to l,000
years or so. The copper mining industry is anxiously awaiting the
outcome of the environmental review as there are six or more similar
and even larger and more polluting copper mine projects waiting in
the wings. One might ask the question if these agencies have sole
jurisdiction, based on the l837, l854 and l855 treaties and court
decisions which reaffirm the Anishinaabe rights in this area.
It’s more than a bit confusing, both
state and federal agencies like boxes. If you ever try filling out a
federal grant application, you know this to be true. It turns out,
that ecosystems and Indigenous peoples do not live in boxes.
EPA or the Environmental Pollution
Permitting Agency?
Enter the Environmental Protection
Agency. In late January, I paid a visit to Region 5 EPA, sort of like
an individual tribal citizen would. I came to ask a few questions of
the EPA, which, in my mind was the one branch of the federal
government which would protect the environment. After all, that’s
its name. The conversation I had was disturbing. First, I asked why
the proposed PolyMet copper Mine had been given an “F” rating,
rare as that may be, in their 2009 Environmental Impact Statement and
if there was any way to not fail with that project.
After all, a study of modern sulfide
mines in the U.S. found that 100 percent of open pit mines in
climates similar to northeastern Minnesota violated water quality
standards. In the U.S. as a whole, 84 percent violated water quality
standards; of these only 16 percent had predicted a high potential
for contaminant leaching. Among sulfide mines predicting low acid
mine drainage potential, 89 percent in fact resulted in on site acid
mine drainage. The hard rock mining industry is the largest source of
Superfund liability to taxpayers, costing more than $2.6 billion so
far. The EPA estimated the cost of remediating existing pollution at
hard rock mining facilities is between $20 and $54 billion. It would
seem like these facts would not change.
In PolyMet Northmet proposal, the EPA,
gave the PolyMet project a failing grade. The EPA gave this low a
rating to less than one percent of similar projects. Undaunted,
mining proponents spent over $20 million to reissue a supplemental
draft of their environmental impact study.
So I asked the EPA, “What could
PolyMet ever do to not fail the regulatory process?” I asked this,
because water quality impacts, like the sulfuric acid which would
come from the proposed mine would peak, say 500 years from now. And,
I wasn’t really sure, which junior Canadian mining company was
going to be around to take care of that. I was told by one of the EPA
reviewers that I should be thinking about mitigation, basically, not
preventing. This has bothered me ever since. Then, perhaps more
bothersome was the lead officer there telling me that the EPA was
really the “Environmental Pollution Permitting Agency.” That was
their job nowadays. I basically said, “Say it ain’t true …
after all, this is my agency.” So, what is this to say? In my
opinion, it is to say that the EPA may have lost its way and need a
bit of encouragement to protect some of those federal laws like the
Clean Water Act.
It turns out, that this is actually a
big thought coming down from somewhere in Washington, and this will
also have possible implications for treaty rights, maybe even for
Region 5 EPA, if they want abide by the U.S. Constitution. In 2013
Bob Perciasepe, Deputy Administrator of the EPA, wrote to all
regional administrators, “ … treaties are the law, equal in
statutes to federal laws under the US constitution, and the US has
the responsibility to honor the rights and resources protected by the
treaties. While treaties do not expand the authorities granted by the
EPA’s underlying statutes, our programs should be implemented to
protect treaty covered resources where we have the discretion to do
so.” It would appear that the EPA has a broader scope than it has
been taking, with the EIS process for the PolyMet mine. And, that
scope should likely be considered as the pipelines, mines, tankers
and increased need for coal impacts the whole region. I am hopeful.
Pipelines Take Two
Back on the pipelines. Enbridge wants
to expand the tar sands pipeline because it suggests there is a need
for this for their customers – far away, and the second is the
Sandpiper line, which is a new pipeline of fracked oil, coming from
North Dakota (the Ft. Berthold reservation) and will be full of that
highly volatile stuff and run up almost against Rice Lake, the mother
lode of ricing on White Earth. This is what White Earth is very
concerned about.
Tribes might have made some decisions
to take money the last time for the Enbridge, but they don’t need
to do it again. Leech Lake in fact had a $ l0 million settlement,
which ended up in a pretty controversial trail – about $ 2.4
million of that was used by then Secretary/Treasurer Mike Bongo and
former tribal Legal Director Eric Lochen and Executive Director
Robert Aitken as an uncollateralized loan to Moondance Ranch, for
their summer concerts. It was a fiasco and the Leech Lake Band of
Ojibwe Tribal Council voted to prosecute their own tribal citizens
for the unapproved loan. I hope the tribe got some good box seats in
the least.
The Fond du Lac Band made a different
agreement, although it did accept the proposal. Its agreement had to
do with previous Enbridge lines which were put in 50 years ago and it
is rumored that Enbridge, threatened to leave those aging pipelines
and instead create a line just south of the reservation, but
nevertheless impacting the tribe. It was a tough negotiation, but
Fond du Lac ended up with a line. Today, Chairwoman Karen Diver is a
is very prominent in her opposition to the mining proposals. But it
is not clear what position the band will take on an expansion of the
Clipper pipeline, based on agreements with Enbridge. It is unlikely
however that Enbridge wants to negotiate again with the band on
anything.
These difficult agreements were made,
perhaps binding the tribe into whatever Enbridge would propose. Times
and information have changed and we know more, particularly about
risk, as the volume of dilbit oil (from the tar sands) doubles in the
lines which cross these reservations. As attorney Paul Blackburn
explained in an interview, “The Alberta Clipper pipeline is the
newest one … As pipelines get old they do tend to corrode and when
they corrode, there’s a bigger risk of them rupturing.” Dilbit is
highly corrosive.
A few other recent findings:
Minnesota or Anishinaabe Akiing is the
primary super highway for Canadian (tar sands oil) to come into the
U.S. There are seven pipelines running through the 1855 and l854
treaty areas, as well as the Fond du Lac, Red Lake and Leech Lake
reservation territories. As Blackburn explained, “They’re
shipping sort of the equivalent of the Exxon-Valdez amount of oil
across Minnesota each day and some of those pipelines are quite old.
So if you think about two million barrels of crude oil potentially
coming into the United States, they can bring in a huge amount of oil
into the United States through Minnesota and most people don’t know
that. It is the primary interstate highway in from Canada to the
United States to bring in crude oil.”
And the spills problem: There’s
spills that have not been reported. There’s the 865,000-gallon
spill in the Tioga farm field and that seeped up from six feet down
in a six-inch pipe that they said maybe got hit by lightning with a
thumb-size leak in it. It leaked for weeks. That’s a lot of not
monitoring. Pipelines are generally monitored by the companies. They
have this thing called the PIG: The pipeline inspection gauge.
Reassuring.
And then they have a super-remote
monitoring system, which doesn’t seem to work. As Blackburn
explained about the largest spill in U.S. history, the Enbridge
Kalamazoo Spill, “ … went for 17 hours. The oil companies say
they’ve got all this great technology, all this computer equipment
and remote sensors that will detect a spill instantly and shut it
off. Well the truth is there’s been studies done about this. I
believe it’s less than 20 percent of the spills are detected by the
technology, by the super-system. So the rest of them are detected by
guess who? The people who live there, local emergency response folks,
by people who smell the spill.” That is, possibly a bit of a local
concern for fire departments. Better have a lot of disposable diapers
and bounty paper towels, that’s the standard for spill clean up as
of last year.
At stake is really the future of
one-fifth of the world’s water and the people, land and animals
that live there. It is the Anishinaabe universe. It is worth
protecting. This spring, tribal governments appear ready to take on
that challenge. On the tribal citizen front, Honor the Earth
intervened to become an official party to the PUC proceedings for the
pipelines with attorneys Peter Erlinder of the International
Humanitarian Law Institute and William Mitchell Law Professor and
Frank Bibeau, free range civil rights attorney and White Earth Tribal
citizen. Working together, might help all of us.
For more information on the battle to
keep the Anishinaabe universe pipeline-free, visit